Citation Nr: 1801368	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  11-05 977	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1. Entitlement to an initial compensable rating for service-connected scars on the right wrist and low back.

2. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbosacral spine, claimed as arthritis of the low back, status post (SP) laminectomy prior to September 2, 2014, and in excess of 60 percent thereafter. 

3. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU), prior to September 2, 2014, to include on an extra-schedular basis.


REPRESENTATION

Veteran represented by:	Larry Stokes, Agent



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Mariah N. Sim, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from July 1980 to November 1980, and again from December 1985 to March 1991.

This matter comes to the Board of Veteran's Appeals (Board) on appeal from a January 2010 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Baltimore, Maryland. 
 
This case was previously before the Board in January 2015. At that time, the Board remanded the claim for further development.

In May 2012, the Veteran testified before a Veterans Law Judge. A copy of the transcript has been associated with the claims file. This hearing was before a now-retired judge. In October 2017 correspondence, the Veteran was given the opportunity to request another hearing and was notified that if she did not provide a response in 30 days, it would be assumed that she did not want another hearing. The Veteran did not respond to the letter, and the Board will therefore proceed.

The Board notes that the RO granted an increased rating from 40 percent to 60 percent for degenerative disc disease of the lumbosacral spine, claimed as arthritis of the low back, SP laminectomy from September 2, 2014. However, as this does not represent a full grant of the benefits sought on appeal, the claim remains before the Board, and the Board has reframed the issue to reflect the rating increase.
The issue of a TDIU prior to September 2, 2014, is REMANDED to the Agency of Original Jurisdiction (AOJ) and discussed in the REMAND portion of this decision. VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1. The Veteran has two service-connected scars that are painful but not unstable.

2. Prior to September 2, 2014, the Veteran did not have incapacitating episodes of at least 6 weeks in the previous 12 months, and the Veteran's degenerative disc disease of the lumbosacral spine was not productive of unfavorable ankylosis of the entire thoracolumbar spine. 

3. The Veteran's degenerative disc disease of the lumbosacral spine was not productive of unfavorable ankylosis at any time on appeal.


CONCLUSIONS OF LAW

1. The criteria for a rating of 10 percent, but not higher, for service-connected scars have been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, and 4.7, Diagnostic Code 7804 (2017).

2. Prior to September 2, 2014, the criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbosacral spine have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017).

3. After September 2, 2014, the criteria for a rating in excess of 60 percent for degenerative disc disease of the lumbosacral spine have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).

Regarding notice, the issue being decided in this appeal arises from the Agency of Original Jurisdiction's (AOJ's) initial grant of service connection and thus is a downstream issues from that of service connection (for which a July 2009 VCAA letter was duly sent).  Accordingly, another VCAA notice is not required. 

As for assistance, the Board finds that all evidence necessary for equitable resolution of the issues being decided herein has been obtained.  The Veteran's service treatment records and post service treatment records have been obtained. Also, a VA examination was conducted in April 2015 in accordance with the Board's prior remand.  In addition, the Veteran was offered the opportunity to testify at a Board hearing which was held. Thus, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Additionally, the Board finds substantial compliance with the January 2015 remand directives.  See Stegall v. West, 11 Vet.App. 268 (1998).  As such, the Board finds that there is no prejudice in proceeding with a decision at this time. 

II. Governing Law and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

A. Increased rating for scars

The Veteran contends she is entitled to an initial compensable rating for her service-connected scars of the right wrist and low back. For the reasons provided below, the Board finds that a compensable rating for the Veteran's service-connected scars is warranted. 

Under DC 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. See 38 C.F.R. § 4.118, DC 7800 (2017). 

Under DC 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm. Id.  Higher ratings are available for deep and linear scars that affect a larger area.  A deep scar is one associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, DC 7801, Note (1). 

Under DC 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. 

Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable (frequent loss of covering of the skin over the scar) or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804, Note (1). If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804, Note (2). Scars can receive separate evaluations under DCs 7800, 7801, 7802, and 7805, despite also being rated under DC 7804.  See 38 C.F.R. § 4.118, DC 7804, Note (3). 

Under DC 7805, other scars, including linear scars, can be assigned a separate rating for any disabling effects not considered under DCs 7800-7804.  Id.

At an August 2009 VA examination, through an October 2009 addendum, the Veteran was evaluated for her right wrist scar. At that time, she did not report any pain. On physical examination, the examiner did not observe adherence to underlying tissue, distortion or asymmetry, limitation of function due to scar, frequent loss of skin over the scar, or any disfiguring. The examiner observed the scar to be superficial and linear.

At a May 2012 Board hearing, the Veteran testified that her scars on her low back and right wrist are painful and raised. She testified that the scars affected her motion, and that her right hand was dominant. She further testified that her right wrist scar pain and limitation of motion was separate than that of her service-connected carpal tunnel. 

At a March 2015 VA examination, the Veteran did not report pain. On physical examination, the examiner did not observe pain or loss of covering of the skin. The examiner noted that the scars were not due to burns, and not on the face or neck. The examiner noted the scars to be linear and superficial.  No additional functional limitations were noted to have been associated with the scars.  

After review of the record in the light most favorable to the Veteran, the Board finds a rating of 10 percent is warranted for the Veteran's right wrist and low back scars under DC 7804.

In making this determination, the Board notes the evidence reflects that the Veteran's scars are painful. Although the Veteran did not report pain during VA examinations, she is competent to report observable symptoms, such as pain and other discomfort, as that does not require expertise beyond the average ken of a layperson. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). 

Therefore, given the competent evidence showing the Veteran's scars are painful, the Board finds that her disability warrants a 10 percent rating under Diagnostic Code 7804.  Indeed, as noted above, DC 7804 awards a 10 percent rating for one or two scars that are unstable or painful. See 38 C.F.R. § 4.118, DC 7804. Therefore, a 10 percent rating is warranted in this case. A rating higher than 10 percent is not warranted, however, because the Veteran's scars are not manifested by three or more scars that are unstable and/or painful, nor does the Veteran have one or two scars that are both unstable and painful. Id.  

The Board has considered the Veteran's disability under the other diagnostic codes pertaining to scars. However, her disability is not located on her head, face, or neck to warrant consideration under DC 7800; nor are the scars shown to be deep (associated with underlying soft tissue damage) or cover sufficient area to warrant consideration under DC 7801 or DC 7802. The Board also notes that the Veteran's scars are not shown to have any disabling effects other than pain, of which is contemplated by the 10 percent rating assigned under DC 7804. Accordingly, DC 7805 is not for application in this case. Therefore, the other potentially applicable diagnostic codes do not assist the Veteran in obtaining a higher rating.  

B. Increased rating for degenerative disc disease of the lumbosacral spine

The Veteran contends she is entitled to a rating in excess of 40 percent for her degenerative disc disease of the lumbosacral spine prior to September 2, 2014, and a rating in excess of 60 percent thereafter. For the reasons provided below, the Board finds that an increased rating in excess for the Veteran's degenerative disc disease of the lumbosacral spine is not warranted. 

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).   

The Veteran's degenerative disc disease of the lumbosacral spine has been assigned a 40 percent rating prior to September 2, 2014, and a 60 percent rating thereafter.  Pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula. A 50 percent rating is warranted when there is unfavorable ankylosis of the thoracolumbar spine. Id. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. Id. 

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note (5).  
The General Rating Formula provides further guidance in rating diseases or injuries of the spine.  In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code.  Id. at Note (1).

Alternatively, intervertebral disc syndrome (IVDS) can be rated under Diagnostic Code 5243 and the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula).  IVDS may be evaluated under the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  Id. at Note (6).

Pursuant to the IVDS Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months.  A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months.  A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the    past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, IVDS Formula, Note (1).

At a September 2009 VA examination, the Veteran was evaluated for her low back disability. At that time, the examiner noted that the Veteran did not have ankylosis of the thoracolumbar spine. Further, there was no indication that the Veteran suffered from incapacitating episodes, or had physician prescribed bed rest of any period within the previous 12 months. 

An October 2009 VA treatment record indicates that the Veteran was seen for her back pain. The treatment provider noted that the Veteran did not have ankylosis of the spine. Further, there was no indication that the Veteran suffered from incapacitating episodes, or had physician prescribed bed rest of any period within the previous 12 months. 

At a September 2014 VA examination, the Veteran reported severe and persistent lower back pain, with shooting pain more on the left than the right side, with problems sleeping, and unemployability. At this time, the examiner noted degenerative arthritis of the spine, IVDS, and assigned diagnoses of multiple degenerative disc disease with disc herniation and left lumbar radiculopathy status post laminectomy, multilevel degenerative joint disease of the lumbar spine, and degenerative joint and disc disease of the thoracic spine. The examiner noted that the Veteran did not have ankylosis of the spine. The examiner noted that the Veteran had at least 6 weeks of incapacitating episodes during the previous 12 months due to her IVDS. 

At a March 2015 VA examination, the Veteran reported chronic and progressively worsening low back pain, that is constant, and made worse due to weather, as well as aggravated by walking, standing, and lying down. She reported that the condition impacted her ability to sleep, and that she used pain medication to manage her symptoms. She reported the use of a back brace, and no other treatment within the prior 18 months. The examiner noted that the Veteran is service-connected for IVDS, with no incapacitating episodes in the previous 12 months. At this time, the examiner noted that the Veteran did not have ankylosis of the spine.

After review of the evidence of record, the Board finds that a rating in excess of 40 percent for the Veteran's degenerative disc disease of the lumbosacral spine is not warranted prior to September 2, 2014. The Board has reviewed and considered the Veteran's assertions in support of her claim, including her reports of lower back pain, which increased with sitting, lifting, and walking for extended periods of time. There is no evidence of unfavorable ankylosis, which is required for a higher than 40 percent evaluation. See 38 C.F.R. § 4.71a. Further, the Veteran is not entitled to a compensable rating using the IVDS formula as she had not had any incapacitating episodes due to her IVDS. Id. 

After review of the evidence of record, the Board finds that a rating in excess of 60 percent for the Veteran's degenerative disc disease of the lumbosacral spine is not warranted after September 2, 2014. The Board has reviewed and considered the Veteran's assertions in support of her claim, however is no evidence of unfavorable ankylosis of the entire spine, which is required for a higher than 60 percent evaluation. See 38 C.F.R. § 4.71a. Further, after September 2, 2014, the Veteran is rated at 60 percent due to having at least 6 weeks of incapacitating episodes in the previous 12 months. This is the maximum rating using the IVDS formula allowed by law. Id. 

The Board has considered the Veteran's claim and decided entitlement based on the evidence or record.  Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 

The Board is grateful for the Veteran's honorable service.  However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise.  See 38 U.S.C. § 5107 (a)("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).


ORDER

A rating of 10 percent, but not higher, for service-connected right wrist and low back scars, is granted. 

A rating in excess of 40 percent prior to September 2, 2014, for degenerative disc disease of the lumbosacral spine is denied.

A rating in excess of 60 percent after September 2, 2014, for degenerative disc disease of the lumbosacral spine is denied.


REMAND

Preliminary the Board notes that a TDIU was granted after September 2, 2014, by the RO. Regarding the Veteran's claim for a TDIU prior to September 2, 2014, the Board notes that the Veteran does not meet the rating requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). However, a TDIU may be granted alternatively on an extraschedular basis under § 4.16(b) if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities.  The Board is precluded from granting a TDIU on an extraschedular basis in the first instance, and must refer the matter to the Director of Compensation Service for the initial adjudication. See 38 C.F.R. § 4.16 (b) (2014); Barringer v. Peake, 22 Vet. App. 242 (2008).  If, and only if, the Director of the Compensation Service or designee determines that an extraschedular TDIU is not warranted does the Board then have jurisdiction to decide the issue on its merits.

Here, the Board finds that there is evidence of record that suggests that the Veteran was unemployable during the appeal period.  Additionally, the Veteran stated that she was unable to work due to her service-connected low back disability.  

The issue of entitlement to TDIU has not been considered on an extraschedular basis under 38 C.F.R. § 4.16(b).  Based on the foregoing, the issue of entitlement to a TDIU is referred to the Director of the Compensation Service for adjudication in the first instance.

Accordingly, the case is REMANDED for the following action:

1. Refer the issue of entitlement to a TDIU to the Director of Compensation Service for consideration of assignment of an extraschedular rating for TDIU pursuant to 38 C.F.R. § 4.16 (b). 

Prior to submission of the claim to the Director of Compensation Service, prepare a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue of entitlement to TDIU. 

2.  Thereafter, the AOJ should review the opinion to ensure that it is responsive and in compliance with the directives of this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 

3.  After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claim based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).






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This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



____________________________________________
ANTHONY C. SCIRÉ, JR.
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs